Race-Based Preferential Treatment Programs: Raising the Bar for Establishing Compelling Government Interests

In: Public personnel management, Band 27, Heft 3, S. 349-360

Abstract

In 1995 a series of federal court decisions called into question the efficacy of race-based preferential treatment programs initiated by two leading public universities.1 Both decisions occurred at a time when government-imposed, race-conscious remedial measures are being increasingly challenged on the grounds that they either violate the Civil Rights Act of 1964,2 or breach the guarantee of equal protection under the laws provided by the Fourteenth Amendment. Most recently, a federally mandated race-based preference was successfully challenged on the grounds that it violated an "implied" equal protection clause in the Fifth Amendment.3 As a further indication of this shift away from state supported racial preferences, legislation is pending in Congress4 that, if enacted, would make the consideration of any individual's race, color, national origin or gender in regard to selection or eligibility for any federal program unlawful.